Written by Jeremy Mittman and Daniel Innamorati

The California Second District Court of Appeals affirmed a trial court’s ruling allowing a lawsuit to proceed against See’s Candies alleging that insufficient safety protocols led to a worker contracting COVID-19, transmitting it to her husband, and causing her husband’s death.  In allowing the case to go forward, the Second District ruled that the California Workers’ Compensation Act did not preempt the worker’s claims.

Plaintiff Matilde Ek worked at a See’s packing line in the early days of the COVID-19 pandemic.  She claimed that during the first three weeks of March 2020, she was forced to work without social distancing measures, even though some workers displayed COVID-19 symptoms.  Mrs. Ek became infected with COVID-19 and then infected her husband and her daughter.  Her husband later died due to complications from the virus.  Mrs. Ek asserted causes of action against See’s for negligence and premises liability.

See’s filed a demurrer arguing that Mrs. Ek’s claims were preempted by the WCA.  The demurrer was overruled, and on appeal See’s argued that Mrs. Ek’s claims should have been dismissed because her late husband’s death derived from Mrs. Ek’s own injuries sustained at work, and thus preempted by the WCA.

The Court said the employee’s allegations did not support WCA preemption because it is possible for an asymptomatic person – someone who has not been “injured” as defined by the statute – to transmit COVID-19.  Thus, Mrs. Ek’s late husband could have contracted COVID-19 from Mrs. Ek even if Mrs. Ek was not “injured” while working at See’s.  The Court went onto explain that even if it considered Mrs. Ek’s COVID-19 infection an “injury,” the WCA would preempt her claim only if her late husband’s death was “logically” or “legally dependent” on Ms. Ek’s injury.  Here, while Mr. Ek’s injury was casually dependent on Mrs. Ek’s COVID-19 infection, Mrs. Ek did not sue See’s based on her own injuries or any trauma her husband might have suffered from seeing her ill.

The panel went onto specifically distinguish from several decisions in other forums, including the Kuciemba case from the Northern District of California (which we covered earlier here).  The panel summarily dismissed the ruling in that case as “conclusory” and thus not persuasive.

While the opinion provides a roadmap of decisions in several other jurisdictions that, for various reasons, have found the WCA preempts COVID-19 “take-home” torts, this decision potentially opens the doors for many other similar lawsuits to proceed in California state courts, given the breadth of the pandemic.  While the Court noted this possibility, it determined that scenario is something for the legislature to address.  In the meanwhile, employer can best protect themselves by ensuring that they have implemented proper safety protocols in the workplace (which for instance, are in compliance and aligned with Cal-OSHA’s Emergency Temporary Standards (“ETS”), which can be found here.